Tsang misused power, court told

PUBLISHED : Saturday, 19 May, 2012, 12:00am
UPDATED : Saturday, 19 May, 2012, 12:00am


Legco president Tsang Yok-sing was wrong to put the brakes on a filibuster during a debate on a controversial election bill on Thursday, the High Court was told yesterday.

Martin Lee Chu-ming SC said there were established rules already in place to deal with such situations.

'There is no procedure for the president to apply the guillotine,' said Lee, who was representing lawmaker 'Long Hair' Leung Kwok-hung in his legal challenge against Tsang's action.

Benjamin Yu SC, for Tsang, argued against the court interfering, saying there should be a separation of powers.

By not interfering, the judiciary was actually 'enhancing the rule of law', he said.

'It is for Legco to keep its house in order, not the court.'

Mr Justice Johnson Lam Man-hon will give his ruling today.

The filibuster was an attempt by a group of radical democrats to block a bill that would prevent lawmakers who resigned midterm from standing in a by-election within six months. People Power legislators Albert Chan Wai-yip and Wong Yuk-man tabled 1,300 amendments to the proposal.

It came to an abrupt end after 33 hours when Tsang invoked powers in the council's rules of procedure to halt debate on the bill. That was the first time powers under that provision had been invoked. Pan-democrats said it could set an 'extremely bad precedent'.

Leung is asking the High Court to declare that Tsang had been in breach when he halted proceedings and to quash Tsang's decision.

He had urgently filed an application for the court's permission for a judicial review and appeared before the court on Thursday. After a day's adjournment, his lawyers and those representing the office of the secretary for justice and Tsang argued the case in court yesterday.

Under Article 92 of the Legislative Council's rules of procedure, the president may decide on a course of action if the rules do not cover a situation. Tsang halted the filibuster using his powers under this provision.

Barrister Jin Pao said the office of the secretary for justice, which he represented yesterday, believed that Tsang had properly used his powers when making the decision.

Leung is not seeking a temporary injunction against Tsang's decision, which, if successful, could lead to a resumption of the debate. He said he had decided against doing this as the court would probably be reluctant to interfere in Legco because of the need to maintain a separation of powers. He said he was pressing on with the case to clarify whether Tsang had been right 'for the people of Hong Kong'.

It could take years for Leung's application to reach a final conclusion through all the procedures and appeals in the judicial system, by which time the bill would probably have long been concluded.

'To a legislator who is voted in, his constitutional right to speak ... deserves protection,' Lee said. 'No matter how long it takes, it's still very important to safeguard his right and the right of all legislators. It's a very important point of principle.'